Opinion
H036533
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. JAVIER TORRES DELGADO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. CR11987)
Javier Delgado appeals from the denial of his motion to vacate the judgment in a 1986 case in which he pleaded guilty to one count of lewd and lascivious conduct on a child under 14 (Pen. Code, § 288, subd. (a)). Delgado brought his motion to vacate pursuant to Penal Code section 1016.5. Delgado contends that the trial court erred in denying his motion to vacate because the 1986 trial court failed to adequately warn him of the adverse immigration consequences of his plea prior to accepting that plea.
Delgado filed his notice of appeal in January 2011. Thereafter, in People v. Placencia (2011) 194 Cal.App.4th 489, the Second District Court of Appeal held that a certificate of probable cause is required from the trial court in compliance with Penal Code section 1237.5 in order to appeal the denial of a motion to vacate after a guilty plea. The court reasoned that because a Penal Code section 1016.5 motion to vacate based on a claimed failure by the trial court to advise the defendant of the immigration consequences of a plea of guilty or no contest necessarily precedes the entry of the plea and affects the validity of the plea, a certificate of probable cause is required to appeal. (Id. at pp. 492, 494.)
We note that Delgado did not have a certificate of probable cause when he filed his appeal. However, Delgado was given leave to file an amended notice of appeal and request for certificate of probable cause. Subsequently, the trial court denied the request for a certificate of probable cause. On July 28, 2011, this court denied Delgado's petition for writ of mandate, which he had sought to direct the trial court to grant his request.
A certificate may be refused if the proposed grounds for appeal are clearly frivolous or vexatious; if this were not so, section 1237.5 would serve no purpose whatsoever. (In re Brown (1973) 9 Cal.3d 679, 686; People v. Everett (1986) 186 Cal.App.3d 274, 280-281.) Obviously the trial court felt this to have been the case, and the record, as reviewed in connection with the writ proceeding, did not persuade us that this view was erroneous. Even though we summarily denied Delgado's petition for writ of mandate, necessarily, we had to determine whether the trial court erred in denying his motion to withdraw his plea pursuant to Penal Code section 1016.5, which involved an examination of the merits.
Penal Code section 1237 provides, in pertinent part: "An appeal may be taken by the defendant: [¶] (a) From a final judgment of conviction except as provided in . . . Section 1237.5. . . . [¶] (b) From any order made after judgment, affecting the substantial rights of the party."
In turn, Penal Code section 1237.5 provides in part: "No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty . . . , except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court."
In People v. Totari (2002) 28 Cal.4th 876 (Totari), the California Supreme Court held that the denial of a statutory motion to vacate a judgment, brought pursuant to Penal Code section 1016.5, is an appealable order under section 1237, subdivision (b). This is so despite the general rule that no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground that could have been reviewed on appeal from the judgment. (Id. pp. 879, 881-882, 886-887.)
However, Penal Code "section 1237.5 relates to the procedure in perfecting an appeal from a judgment based on a plea of guilty, and not to the grounds upon which such an appeal may be taken." (People v. Ribero (1971) 4 Cal.3d 55, 63, fn. omitted.) Hence, although Totari stands for the proposition that denial of a motion to vacate under section 1016.5 is appealable pursuant to section 1237, this does not automatically mean it also stands for the proposition that no probable cause certificate is required. The issue simply never arose in Totari, as the defendant there obtained such a certificate. (Totari, supra, 28 Cal.4th at p. 880.)
Though, technically, an appeal from an order denying a motion to vacate the judgment pursuant to section 1016.5 may be from an "order made after judgment" (Pen. Code, § 1237, subd. (b)) and not "from a judgment of conviction upon a plea of guilty . . . . " (Pen. Code, § 1237.5), an alleged failure to warn of the consequences of a plea is a matter occurring before entry of the plea and affects the plea's validity. (People v. Kaanehe (1977) 19 Cal.3d 1, 8.) The California Supreme Court has stated that "[a] defendant must obtain a certificate of probable cause in order to appeal from the denial of a motion to withdraw a guilty plea, even though such a motion involves a proceeding that occurs after the guilty plea. [Citation.]" (People v. Johnson (2009) 47 Cal.4th 668, 679.) Simply put, " 'the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.' [Citation.]" (People v. Panizzon (1996) 13 Cal.4th 68, 76.)
"Although the requirements of [section 1237.5] do not generally bar review of proceedings occurring subsequent to the plea . . . , a defendant may not avoid its effect by strategic maneuverings. Thus, where his essential attack is on the validity of his plea, he is subject to section 1237.5 even if he raises the question after the plea, by the vehicle of a motion to withdraw. [Citations.]" (People v. Manriquez (1993) 18 Cal.App.4th 1167, 1170.) Delgado's attack is on the validity of his plea, as he himself recognized in his notice of appeal and request for a certificate of probable cause.
Nevertheless, it would be unfair of this court to procedurally bar Delgado's appeal because he was unable to procure something that this court impliedly conceded that he needed when we granted his application for leave to file an amended notice of appeal and request for a certificate of probable cause.
That being said, we find no merit in Delgado's appeal and affirm the lower court's denial of Delgado's motion to vacate.
Penal Code "[s]ection 1016.5, subdivision (a) provides: 'Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.' Subdivision (b) directs the court to vacate any plea taken without the advisement when the defendant shows that the plea may have the adverse consequences described by the statute." (People v. Gutierrez (2003) 106 Cal.App.4th 169, 172-173.)
"To prevail on a motion to vacate under section 1016.5, a defendant must establish that (1) he or she was not properly advised of the immigration consequences as provided by the statute; (2) there exists, at the time of the motion, more than a remote possibility that the conviction will have one or more of the specified adverse immigration consequences; and (3) he or she was prejudiced by the nonadvisement." (Totari, supra, 28 Cal.4th at p. 884.) We review the court's order denying a section 1016.5 motion to withdraw a guilty plea for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 (Zamudio).)
Factual and Procedural Background
In June 1986, Delgado was charged with two counts of lewd and lascivious acts on a child under 14 (Pen. Code, § 288(a)), involving two separate victims. There is a hand written notation on the charging document, which states "Information; allege 1 count 288. No deal on sentence." Thus, when he entered his guilty plea it was to only one count. No sentencing transcript remains, but the minute order of the arraignment and plea does have "Defendant advised he will be deported" manually typed at the bottom of the "Entry of Plea" section of the form.
The probation report indicates that after his plea and sentencing Delgado admitted having been in this country illegally and said he wanted to go back to Mexico and never return to the United States. Delgado admitted to the probation officer that he had engaged in two instances of inappropriate sexual contact with one of the victims.
The probation report recommended probation for Delgado "on the assumption that he will be deported." In addition, the probation officer recommended a probation condition forbidding Delgado from returning to the United States without proper documentation. Delgado was given a five-year suspended sentence and placed on probation and ordered to serve 365 days in county jail as a condition of probation. In the Terms and Conditions section of his probation order was manually typed, "Defendant shall not return to the United States without proper documentation."
According to Delgado he was deported in January 1987 because of his conviction. He reentered the United States a month later illegally. Later that year he applied for adjustment of status as a special agricultural worker; while the application was pending he was allowed to work in this country, but not to leave it. Nonetheless, in 1991 Delgado left the country and reentered again.
In June 1994, Delgado moved to dismiss the charges against him and expunge his record. This motion was granted in August 1994.
Thereafter, in March 1999 a federal immigration judge found Delgado "deportable as charged and ineligible for relief from deportation" based on his conviction. After an appeal, in 2003, the Board of Immigration Appeals (BIA) agreed that Delgado was deportable but remanded to an immigration judge to allow Delgado to apply for relief from deportation. In May 2005 the immigration judge denied Delgado relief, and the BIA affirmed in December 2005. Subsequently, Delgado went to the Ninth Circuit Court of Appeals, which in December 2009 issued a memorandum in which it declined to intervene.
In September 2010, Delgado filed a motion to vacate the judgment against him and withdraw his guilty plea on the ground that he was not properly advised by the court of the immigration consequences of his guilty plea as required by Penal Code section 1016.5. Delgado asserted that he if he had been advised about all the "immigration problems" he would encounter, he would not have pleaded guilty, "because [he knew he] was not guilty."
After hearing, the court denied Delgado's motion to vacate in December 2010. In so doing, the court determined that "prejudice has not been demonstrated." The court went on to explain, "[t]he factual situation is that, given the nature of the crime alleged, a felony probation offer was an extremely generous offer. Part of that probably had to do with the idea that defendant was going to be deported. But in any case, the concept that he would have rejected that offer and taken his chances at trial is unlikely, at best, in the Court's view."
Additionally, the court found that the motion was not "seasonably made." We do not and need not address that conclusion because as we shall explain we find that Delgado is unable to show prejudice.
Since, essentially, the lower court decided this case on a lack of prejudice, we review the showing a defendant must make.
"On the question of prejudice, defendant must show that it is reasonably probable he would not have pleaded guilty or nolo contendere if properly advised." (Totari, supra, 28 Cal.4th at p. 884.) This question is a factual one. (Zamudio, supra, 23 Cal.4th at p. 210.) Accordingly, on review we apply the substantial evidence rule. (People v. Quesada (1991) 230 Cal.App.3d 525, 533.) Under this rule, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320 ; People v. Johnson (1980) 26 Cal.3d 557, 578.) Rather, "we 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. . . . If the circumstances reasonably justify the trial court's findings, an appellate court cannot reverse merely because the circumstances might also be reasonably reconciled with a contrary finding.' [Citations.]" (People v. Quesada, supra, 230 Cal.App.3d at p. 533.)
We agree with the lower court's assessment of the lack of evidence of prejudice in this case—i.e. lack of evidence that it is reasonably probable Delgado would not have pleaded guilty if properly advised. In his motion, Delgado offered nothing in support of this claim other than his own one-sentence assertion; he offered no discussion of the facts of his original criminal case or any kind of independent corroborating evidence —such as a declaration from trial counsel or documentation from the court or prosecutor's office that showed what were the strengths and weaknesses of the underlying case —without such corroboration Delgado's one-sentence assertion lacks foundation. (See People v. Suon (1999) 76 Cal.App.4th 1, 4-5.) Furthermore, the court was not bound to give credence to such a statement, even if uncontradicted. (See id. at p. 7.)
We recognize that after 24 years the likelihood that anyone can remember or has documentation regarding the case is virtually nonexistent.
Moreover, given his admission of guilt to the probation officer, his current claim that he "would not have pled guilty, because I know I was not guilty" is not particularly credible. As a general rule, self-serving declarations lack trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 612-613.) The trial court appears to have discredited or given little weight to Delgado's self-serving declaration.
A number of factors bear on the question of prejudice, in particular, the probable outcome of the case had Delgado not entered the plea he now seeks to withdraw. (Cf., In re Alvernaz (1992) 2 Cal.4th 924, 938.) We note that in 1986 the punishment for a violation of Penal Code section 288, subdivision (a) was, as it is today, "imprisonment in the state prison for three, six, or eight years." (Stats.1986, ch. 1299, § 4.) Thus, if Delgado had gone to trial and was found guilty he faced a minimum of three years in state prison. Delgado asserts, however, that "any reasonable mind considering the strength of the evidence against [him] would have concluded that this case hardly presented a rock-solid prosecution case against him. As the probation officer's report reveals, one of the alleged victims . . . made materially inconsistent statements about what had occurred, both as to the manner of touching (over versus under the clothing) and the number of times the touching took place (only once versus four or five times at least). Add this inconsistency to the girls' mother's revelation that they had previously been molested by another person, and [he] would clearly have possessed the seeds of reasonable doubt. [His] confession to the probation officer in no way diminishes the potential for a favorable outcome at trial, as this statement was made after he had already pled guilty, and he obviously could have elected not to testify had he proceeded to trial." We are not persuaded. Delgado has provided us no corroboration that the case against him was weak other than his conclusory argument based on general information in the probation report. This is simply not sufficient. Nor does Delgado suggest what defenses he might have raised at trial. Simply put, this record discloses no reasonable probability that Delgado would have enjoyed a more favorable outcome had he gone to trial on any of the charges.
The probation report indicates that one of the victims told a Salinas police officer that Delgado rubbed her vaginal area over her clothing once. However, in a later interview she told the officer that it was actually underneath her clothing and that it happened four or five times. The same report does show that the mother of the victims said that the girls had been molested by their half-brother.
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Accordingly, we hold that the lower court did not abuse its discretion in denying Delgado's motion to vacate the judgment in this case.
Disposition
The order of the lower court denying Delgado's motion to vacate the judgment in his 1986 case (CR11987) is affirmed.
ELIA, J.
WE CONCUR:
RUSHING, P. J.
PREMO, J.